The rantings of a Public Defender constantly fighting against society's pervasive Police Industrial Complex. Enjoy the unique perspective of one whose life's work is to fight the system through the system.

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Thursday, December 22, 2005

I recently read a book that is well worth reading if you are a mystery fan, a crime fiction fan, or someone interested in the criminal justice system, all things that I am interested in. The boook is Death Row Defender, and the writer is Ray Dix. First, a disclaimer, many months ago Ray wrote me about his book, and later sent me a copy. To the extent that Ray sent me the book for free, saving me $12 and the trouble of going to the store or buying online, my review could conceivably be colored by his generosity. That being said, I've had other books sent to me by other writers that have not merited reviews in the past, so that should allay you concern that I'm writing this out of some misguided sense of $12 obligation.

Ray's book is about an death penalty appellate lawyer named Woody Thomas in Florida who picks up his newest case. A young man named John Clayton is on death row accused of raping and killing a woman several years earlier. He is set to be executed shortly, and Thomas is tasked with looking to see if there were any issues missed in the case worthy of further appellate review that may save his life. Only, Clayton doesn't want Thomas to "save his life" (ie - get him life in prison), Clayton wants to get out, because he's innocent. Fat chance.

The book takes you through the legal process of death row inmates, as well as the underlying trial, and the drama behind the initial killing, coverup, and attempts to dissuade Thomas from conducting his investigation into the underlying crime. The story is very interesting, the drama is very real, and aside from the thriller aspect to the book, it gives a terrific insight into the life, mindset, and complexity of a defense lawyer. Rather than being a bleeding heart do-gooder, which is how most people probably think of defense lawyers, Thomas is that, but he is also hardened by his time serving in Vietnam, rough around the edges at times, sensitive and caring at others. He maintains a high degree of incredulity about both things his client and law enforcement say to him. He has close friends in both camps (as many defense lawyers do). In short, he is a complex person with a complex past who you begin to really like as the story goes on.

The book is a quick read, once you start it is engrossing and hard to put down. Good thing it isn't too long, as I tend to put aside things like, well, work, when I find a good book, which I did for this book. There were many times in court when I was all too accomadating to other lawyers in court letting them go ahead of me while reading the book.

In closing, I would highly recommend this book. The name doesn't say much about the book, but don't hold it against Ray and his book. I could easily see this becoming the type of book where the character recurs in many future volumes dealing with new cases. Unfortunately, in contrast with books like those of Patricia Cornwall, Jonathon Kellerman or other mystery writers, one would not expect to have lawyers continually run into the type of excitement that Woody Thomas seems to find himself in this case. If he does, then that would be a jurisdiction that I would never like to practice in. So, if you can make him a reucurring character, go for it Ray, if not, I enjoyed his one appearance in print.

Tuesday, December 13, 2005

Well, all the bluster and positioning are over, and Tookie has been executed. I haven't written a huge amount about the death penalty of late, but it is something that certainly affects my life, as someone who currently represents someone whom the prosecution seeks to kill, and someone else that they very well may seek to kill in the near future when they make their decision about it.

I have long been ambivalent about the death penalty. In many respects, I have no problem with the notion that as a society, we are so angry at someone that we will kill them. I mean, I have certainly hated people enough that I wanted to kill them, and we're not even talking about violent crime. There are times I want to be able to run bad or rude drivers off the of the road in complete anger and disgust. Of course, in the sober light of day, with a little reflection, that looks ridiculous. But certainly, if someone raped my wife or molested my kids, even if they didn't kill them or inflict any "lasting" bodily injury, I would not be happy with a long prison sentence, or even a life sentence, I would want to kill the person.

The fact that society harbors those feelings towards those who do evil is no surprise, or frankly, concern to me.

Certainly, practical concerns about the application of the death penalty bother me. The fact that it is used overwhelmingly (nationwide, although not in California over the last 30 years) against minorities and poor people. The fact that people on death row, especially in places with a lesser sense of "justice," have been given very unfair trials, which have even led to innocent people being left on death row. It is unclear if or how many innocent people have been executed since the death penalty's resumption in the 1970s, in large part due to the fact that far less resources are expended in clearing the already dead, vs the not quite yet dead. Add in that the fact evidence is usually destroyed after an execution and the fact that whatever is left over is almost never allowed to be tested for possible claims of wrongful execution, and it is clear that some innocent have probably been killed (there are cases out of Texas and Virginia in which it appears potentially innocent people were executed).

The final "logistical" problem (as opposed to any moral concerns) one may be concerned with is the randomness of it's application. How someone convicted of a particularly heinous crime one place gets life, while someone convicted of a more "benign" murder somewhere else is executed, frequently due to differences of race, gender, sexual orientation, race of the victim, or more importantly, political considerations of the local or state prosecution or judiciary.

But, these are not the concerns that leave me ambivalent (remember that ambivalent doesn't mean neutral, but rather having feelings in both directions, which is how I feel). I feel ambivalent due to the sterile nature of the process. We take something as emotional as revenge, life for a life, anguish over the death of a loved one, and we transport it to this sterile environment of a courtroom, or a jail cell, and finally to an execution chamber where they use all means possible to keep someone alive so that they can kill him cleanly, at a date and time of their own choosing, not someone else's. This is why people are rushed to the hospital so that they can be held alive a few more days (such as if they try to commit suicide) so that they can be killed by the state.

The sterility of the process belies the vengefulness that begat the policy. And it somehow seems unseemly for the state to go about the sterile application of cold-blooded vengeance. Obviously, the state kills people all the time in a justifiable manner (war, for instance?), but that is not sterile, clean and premeditated (at least, we hope). Recognizing that people will invariably die due to state policies (such as building the Golden Gate Bridge or the Panama Canal, where thousands died), it is very different to act with great pomp and circumstance and formality while the state goes about extinguishing a human life.

As I see the state ramp up it's death apparatus, the cold blooded and steely manner in which the state kills stands in such marked contrast to me from the manner in which the actual victims live in permanent red-hot anger - something that does not abate, regardless of an eventual execution.

And this brings up the point that seems most obvious to me as I sit and reflect on any wrong done toward me over time - there will hardly ever be true personal satisfaction from the ultimate revenge. Listen to the statements of the families of the victims, over and over they say the same thing, at every execution - "he died too nicely," "he got more years than my family member did," "he didn't have the same pain my family member did," and on and on. In attempting to mete out the ultimate revenge, the state perpetuates a system of vengeance that is not, ultimately, any more satisfying than life in prison would end up being.

Sure, maybe we could have trials within a week of the offense, and execute within a month, and emotions will be equally raw, so that the crime and punishment will have a far greater symbiosis, but we have to recognize what every efficiency we put into the system causes - more failures.

Ultimately, I don't know if our desires - red hot vengeance and true justice, can ever result in a system that will give us the society we want. So, while I don't mourn for the killer over their victims, I still feel this disquiet as the state's machinery of death continues on.

But, it is clear that probably the vast majority of people in the state overwhelmingly approve of his execution, and that the state machinery of death will continue unabated for years to come.

Wednesday, December 07, 2005

For those of us who work with cases that can be complete losers all the time, we are used to coming up with creative definitions of victory. Doing a death penalty trial and your client gets life without parole? That's called a huge victory. Client is offered 10 before trial and gets 5 after trial? Another huge victory. He gets convicted of only 3 of the 5 counts in the complaint? That's a victory. On trial for murder and is convicted of manslaughter? That's a huge victory also.

So, seeing the Republican reaction to Tom Delay's getting one of 3 counts dismissed yesterday reminds me of being a public defender. Which suggests to me that his case sucks about as bad as our typical client's case sucks. They probably have boatloads of evidence against him, and on come small technical grounds he was able to get a dismissal of one charge. I noted that none of his arguments to dismiss the other counts were substantive arguments going to the heart of guilt or innocence as to the main allegation. For instance, he argued that money laundering is only for illegal activities (not true), and that money laundering has to be with cash only, not checks (also not true, but very creative, I can only assume that we'd see a lot of drug dealers doing transactions by check if that actually was the case).

So, the fact that he's trumpeting the dismissal of one count sounds so, well, shall we say it, "Public Defender" to me. It smacks of the little victories we often have to be satisfied with as we are getting are asses handed to us in the courtroom.

Of course, they feel all the more satisfying often because we are frequently going up against DAs who consider anything less than a complete conviction a devestating loss. The fact that they acted like they lost makes it feel all the more satisfying for us.

Anyways, fight on Delay, it's nice to see you in the role of the underdog, the poor persecuted individual against the big evil government. I'm sure the memories will stick with you once you get back to the majority leader position when you're finally acquitted, and that you will be reformed - a champion of the underdog.

Thursday, November 17, 2005

I had vaguely rememberd hearing about this case a while ago. A US citizen of Jordanian descent was in Saudi Arabia at a religious school, was arrested by Saudi authorities accused of terrorism, held there for 2 years where he confessed to joining al Qaeda and plotting terrorist acts (including to kill President Bush), before being turned over to US authorities, extradited and tried here for terrorism.

Sounds like a straight forward terrorism prosecution, right?

Oh, yeah, and he claims that he was tortured into giving a confession there.

Huh, tortured in Saudi Arabia? Our close allies there would never do that, would they? Come now, torture people, in Saudi Arabia? Isn't that a humane place where a primacy is placed on human rights, where punishment is only meted out grudgingly and after maximum consideration? Uh, no, that would not be Saudi Arabia.

So, how on earth is our government prosecuting someone for a confession, apparently made without any corroborative evidence of his membership or actions, made in a Saudi prison? Am I missing something here? One of the world's more repressive governments gets a confession from someone while they're imprisoned for 2 years? Isn't that presumptively tortured? Can't we assume for the sake of an argument that just about any statement that comes from a person held in a Saudi jail is elicited through torture, that the Saudi government could probably get Michael Jordan to deny ever playing basketball, to get Martha Stewart to sing the virtues of using your fingers at a fancy meal, to get George Bush to admit making an error? Our government is now prosecuting people in our courts using only testimony extracted from Saudi police?

Am I missing something here? I hope. Tell me that there is more to this than a Saudi confession. Yes, I know US doctors examined him and say that the 4-10 lines down his back (4 if your a government doctor, 10 if you're his doctor) are consistent with not only torture, but just as likely of being scratched on the back with someone's nails, or something benign like that. But, haven't these repressive governments become good at torturing people with things like electric shocks to the genitals, so that they don't leave marks? Alright, I realize that FBI doctors were permitted to visit him, and they thought he was not being tortured, but he was there for 2 years. Did they visit him daily, weekly, 2 times the whole time he was there? And didn't the Nazis manage to clean up a couple of the ghettos before walking the Red Cross through them just enough for the Red Cross to say that they were not terrible places to be?

Give me a break, I really hope that there is more to this case than has been reported. If not, the jury had better come back not guilty (although, understand that they brought this case in Alexandria, Virginia for a reason, they're far more likely to get a conviction there). And regardless, what does this say about our fight for freedom around the world that we're stooping to this level to prosecute people? This is the freedom we're fighting for? Bring me back some of the old tyranny of the 60's, 70's, 80's and 90's.

Friday, November 11, 2005

I've tried to keep bare-knuckled politics out of my blog, meaning that I could easily blog for hours about every political situation here, but then my blog would be no different than the multitude of political blogs out there, only far less in-depth and not nearly as good. People who do observe this blog would quickly abandon me completely (those who haven't already, due to my recent dearth of posting). However, some stories that are political of the "bare-knuckle" sort, impact directly on my life as a public defender. Those stories usually relate to political fights over judicial appointments and the Supreme Court, but here in California, the recent special election had special resonance for Public Defenders, and all other public employees statewide.

This special election we just had in California was only partially over the issues specifically named in the 6 "Republican" propositions. What it was really over was an attempt by Arnold and the Republican establishment to strip working people and unions of their power in Sacramento so that corporate interests could take control. One of the propositions that did not make it on the ballot because it was so poorly written would have ended the whole notion of defined benefit pensions, as most government employees presently have (yours truly included). There has been an assault on defined benefit pensions for a few years now, starting at the top, in Washington (attempts to turn social security into a 401k plan), and Arnold continued it here in California.

Defined pensions have become less popular over the years, in part due to very poor management of them by corporations (with corporate defined benefit pensions), state governments, and the employees who have received huge benefit increases in lieu of pay raises, knowing that the Pension Benefit Guarantee Corporation would cover any future losses.

Arnold almost put a proposition on the ballot here in California that would have done that for all new public employees, but failed when the terribly written proposition was found to also have stripped survivor benefits police and firefighter pensions. As I've always written on this site, if you want to fight a losing political battle, fight it against firemen and cops, because they rule the state and local governments (anyone in uniform with guns makes a perfect political prop - in the state and local government it's cops and firemen, ditto for federal officials, with the addition of the military). Arnold just messed up by going after the men in uniform (and nurses too, they are mildly popular, but not nearly as much so as police and firemen).

Public Defenders in much of California are tied in with the District Attorneys (so maybe those clients who say we are just DAs in other clothes are right? - Just kidding, of course not), so we make the same money. This makes sense, we work for the same agency, doing much of the same work (although I would contend that our job is much more difficult), under the same conditions. Defined benefit pensions are just one compensation for the fact that, as attorneys, we could easily go out and make much more money in the private sector than we do here, but we don't, in large part out of idealism. The compensation of a defined benefit pension is one of the carrots that keeps us in the county for a long time, rather than having a frequent mill of people moving in and out of the office, and thus having to constantly retrain people to do the job (an expensive prospect). Furthermore, our pensions are in large part self-sustaining, so that in good times, the county dips into our pensions to pay off their general fund, while in bad times the county has to fund our pensions through additional payments beyond what we already pay into the system. However, in our relatively well-run county (in contrast to someplace like San Diego), our pension system is doing very well without any need for a county bail-out on the horizon.

So, the rejection at the polls of Arnold's initiatives was a huge victory for Public Defenders, as well as for much of the rest of the working people of the state. I believe that if public employee unions could not as easily give large sums of money to political causes, then the only voice that would be heard in state and local jurisdictions (as well as the federal government) would be corporate voices, which already outspend public employee unions by huge amounts. Since the interests of union workers is generally the same as the working middle class and lower classes everywhere, the large amount of worker's interests are covered when public employee unions are heavily involved politically. Squeezing out that voice would result in the squeezing out of regular people who cannot donate $25,000 per person to sit with the governator, and would squeeze out their interests as well.

California's recent election results were a vindication of the working person, and since public defenders are squarely in that group, it was a victory for us as well.

Sunday, October 30, 2005

Just read this article from Time Mag that suggested that a plea deal was in the works last week before the indictment of Libby came down where Libby would plead to some charges. The deal allegedly broke down because Fitzgerald wanted "serious" jailtime for Libby. Couple that with this post on the Drudge Report which suggests that Fitzgerald may call Cheney as a witness, and that Cheney will refuse to testify pursuant to Executive privilege, and you have the makings of what I predicted before - a presidential pardon in the works.

As far as I'm concerned, the only question is when does Bush do the pardon. Clearly, he has to wait until after the mid-term elections, since he looks so weak right now, and he's clearly dragging his party down, this would be a nail in the coffin. So, does he do it right after the mid-terms, before the new Congress convenes (this would depend on how the Republicans do in the mid-terms, I guess, because it would probably never happen if the Democrats retake Congress), sometime during the next Congress, or after the next presidential election and before he leaves office (again, this would probably depend on whether, God forbid, one of his toadies like Condi wins in 2008).

It seems clear that Libby is willing to fall on his sword to protect Cheney. Let's be real, is there any doubt that Cheney was intimately involved in the decision to leak Plame's name? Libby goes and picks Cheney up at his house every morning so they can drive in together. Libby is as close to a shadow president you can get without being assigned directly to the president, as opposed the VP. If Libby was willing to plead, but not to too much jail, it means he'll fall on the grenade for Cheney, as long as he doesn't have to sing for the Grand Jury against Cheney.

I have to think that a pardon has been either explicitely offered for playing along, or at least implicity offered. Does anyone think that Bush, the most famously loyal to a fault president in the nation's history, is going to let someone like Libby go down while he was pushing Bush's most cherished pet project, the overthrow of Hussein? C'mon now, who could really believe that.

Friday, October 28, 2005

All I have to say is, about time. Congress could clearly not be relied upon to investigate serious charges like the outing of Plame, and a politically connected prosecutor would not be trusted to bring charges like this nor to actually investigate with the tenacity that Fitzgerald appears to have investigated the case with.

I still doubt seriously that Libby will ever spend a day in jail. Even if he is convicted by a jury of his "peers," he will then appeal his case to a appellate court that is packed with right wingers who in many cases have an agenda to help out their political party. They will know who buttered their bread. Even assuming that it gets far enough to that point, I can assure you of one last fact - In the days between the 2008 presidential election and the January 2009 inaguration of a new president, Bush will, like his father, pardon anyone involved in this case.

As long as Libby can put off his day of reckoning for 3 more years, he is home free. My guess (I've been wrong before: see my Supreme Court speculation and Martha Stewart speculation), Liddy never has to meet up with his new cellmate Bruno and explain where his nickname Scooter comes from. But, as I've said, Republicans don't go to jail, they only put people there.

Monday, October 24, 2005

I remember thinking how absurd it was that a Clinton hater was made special prosecutor for Whitewater (in which, of course, he found no wrongdoing). But, turnaround should be fair play. Even though the Republicans are calling Paul Fitzgerald "overzealous," the simple fact is that he is about as apolitical as they come, pretty much what you would want in a special prosecutor who is pursuing politically charged allegations. So, why have him if they didn't get someone like him for Clinton.

For special prosecutor, if he declines to indict (or even if he does, but doesn't go high enough), I suggest he be replaced with .... John Kerry. He was once a prosecutor, he can investigate this as well as anyone. Why not choose him, he'll certainly be as balanced and fair as Ken Starr was, so isn't turnabout fair play, or not? Is there a different standard for judging Republican wrongdoing than Democratic? Remember, Fiske was replaced as incdpendant counsel by Ken Starr, not because he had done anything wrong, but for appearances purposes after a new OIC (office of independant counsel) statute was introduced (of couse, the real reason Fiske, a Republican, was replaced was because he wouldn't endorse any of those loopy Republican theories that Vince Foster was murdered by Hillary). I say we get a new one after Fitzgerald is done with this Grand Jury. And I say we get John Kerry as our new independant prosecutor.

Friday, October 21, 2005

Over at Live Journal, there is a great rendition of a typical conversation that I seem to have with clients on at least a weekly basis (maybe less so, since I tend to handle more serious cases, and thus have less volume, but certainly back in the misdemeanor stage of things).

Thanks to Skelly over at Arbitrary and Capricious for the great link. Skelly has a jury out now for a few days. I know how agonizing that can be. My last jury went out on a Friday, and came back on Tuesday (Monday being a court holiday), so I had to stew on it for the whole weekend. I hate jury deliberations. Good luck Skelly!

I just did a trial where, during jury selection, I had some of the most right wing reactionary possible jurors expressing themselves. Basically, this was what they had to say: "If you are charged with a crime, it means you are probably guilty, because the DA would never charge someone who didn't do it, so even without any evidence, I would find the defendant guilty." "If you assert your right to remain silent, you do so because you are guilty." "Being charged with a crime is evidence of guilt." "Being in a gang means that you are guilty of anything that gang does, even if you have no part in it."

You get the idea, these people were so out there, they made Torquemada (Spanish inquisitor, for those who don't know, or never saw History of the World Part I) look reasonable by comparison.

So, it got me to thinking, do any of those right wingers believe that Tom Delay must be guilty? I'm sure they don't, but he is an indicted felon. A grand jury of disinterested citizens has found probable cause that he committed a crime, even after being presented with any exculpatory evidence (I'm sure right wingers will now loudly protest that a grand jury could indict a ham sandwich, which I don't dispute, but hey, am I going to be the looney liberal to suggest that the system is weighted against criminal defendants? No, I'll leave that to the right wingers right now).

I wish that I had thought to ask these potential jurors this question.

I did get a nice couple of lines in, though. You see, during investigations into police misconduct, or any time there is an officer involved shooting, and Internal Affairs wants to question the officers, they have to read them their rights first (never mind that they're not in custody). The officers are then given COMPLETE IMMUNITY on what they say, so that it cannot be used against them in any way in a criminal matter, so that they can investigate the potential misconduct. This means, practically speaking, that the police can rarely be charged with crimes after they've given these "compelled statements." How many other jobs do you have where you can keep your job and assert your 5th Amendment right to remain silent in the face of potential prosecution? None that I know of. So, if all criminal defendants who don't testify, or assert their 5th amendment rights, are guilty, does this mean that all cops who assert their rights and then have to give compelled testimony are also guilty of the underlying crime they're refusing to speak of?

I asked this of those obstinate jurors, and you could see them crumbling behind the walls of congnitive dissonance that they've hidden behind. You could almost hear them muttering to themselves "Must...watch...Fox...News...NOW!!!"

Saturday, October 15, 2005

This applies directly to me, so I'll be the first (that I know of) to write about it.

The LA District Attorney's office is getting out of control in the number and type of cases that they seek the death penalty on. There has been a change leadership on the Special Circumstances Committee (the group that decides whether to seek the death penalty or not on special circumstance cases), and the new leadership is apparently committed to seeking the death penalty more frequently, in line with their political beliefs that more people should be sentenced to death as a matter of course.

The most egregious example of this is the case of Juan Alvarez, who tried to kill himself by putting his car in the path of an oncoming train. Whatever you may think about Alvarez and his admittedly stupid actions, how they merit a potential death sentence is completely beyond me. Considering that the death penalty is meant for the worst of the worst, for those who are just so evil and depraved that they have forfeited their right to live in even the indecent society of prison, how can a person who, by all accounts, only wanted to harm himself, be put in that category. How many times do cars get hit by trains without causing anything more than a few bumps or bruises for the people on the train, while killing the driver of the vehicle. The fact that this one time the unthinkable happened does not in any way merit a death sentence. This is the intersection of law and politics at it's worse (and is an argument for doing away with the death penalty altogether - in that having political considerations decide whether someone lives or dies is reprehensible).

But, that case is not alone. In my conversations with many people around the courthouse, DAs and defense lawyers alike, I have discerned a trend that the death penalty is being sought in much greater numbers with the change of the committee. Cases that in the past would never merit seeking death, let alone receive a death sentence, are now being treated as death cases (whether they actually succeed in getting death in many of these cases remains to be seen, and won't be known for another year or two).

Now, let's say you like the death penalty, and think that it isn't sought frequently enough - fair enough. But, let's see this through. I have one death penalty case right now, as do a few of my collegues. This death case has begun to crowd out my other cases, in that it will begin to take more and more time to prepare for than if the prosecution had just sought a punishment of life in prison without the possibility of parole. In fact, if they were not seeking death, I would not even be on the case - the only reason I got on it was to work with another person who was already on the case but unable to go it alone. So, at some point, 2 lawyers are going to be working on this case close to full time, preparing for nearly a year for this case to go to trial. What happens to all of my other cases at this time? Well, I will have to have less cases, which means that they will have to go to someone else. But, you can't give too many cases to other people, so we will have to promote more people to felonies to handle these cases. If you promote more people to felonies, you need to train them, which requires resources, and you need to promote them, which means more money. And you need to replace them, which requires more hires. Thus, just because of my one case, perhaps you'll need to hire another 2 or 3 lawyers to pick up the slack.

And that's just one case. The prosecution is seeking death in a bunch more cases than usual. What if they have 10 more death cases in my office than they normally would have? This could mean 20 extra lawyers to pick up the slack. And then you have to deal with the paralegals that need to get hired to pick up the extra work on these cases. Of course, an investigator needs to work on the case, and they will be more tied up on that case than on your typical case, so maybe we'll need a couple more investigators for those cases. And don't forget, we'll have to travel much further afield than normal to investigate penalty, which is a more intensive investigation than just investigating the guilt phase (this is becuase you have to investigate the person's background, their childhood, youth, etc... which means you need to go to where they're from and track down their family, which can often require people to go places around the country, or even overseas). Are you still adding up the costs?

Don't forget about the extra experts that are needed in such a case, just for penalty. You need to look at the organic history of the person (do they have brain damage, mental retardation, other mental, psychological, psychiatric or physiological problems?). This may require things like shrinks, doctors, MRIs, PetScans and other potentially expensive tests. The state (ie - you, the taxpayer) pays for this. The DA's office probably needs extra resources on all of these cases, I don't know first hand, but I can guess extra investigators, attorneys, paralegals, and other resources. They'll also need to conduct their own testing if any of the defense testing shows anything of consequence.

These cases strain the courts more as well. They require more money for things like daily transcripts, longer trials, overtime for court staff to handle the extra work, court reporters charge by the page and per copy, so when you look at long transcripts with at least 3 copies (if there is only one defendant, it goes up more for each extra defendant), you are looking at a lot of money. One court reporter I know made over $10,000 (above and beyond salary, this is for just the transcripts) for transcribing a 3 week/3 defendant prelim. And that wasn't even a death penalty case. I can assure you that the prelim would've been twice as long if it had been a death penalty case (again, you do the math).

I have no idea about the costs of appeal, except to say that they are much more expensive than incarcerating the person for life.

So, let's assume you really want to kill a few more people, rather than put them away in solitary confinement for the rest of their lives. In other words, they are already getting a death sentence, the only question is how long before they die, and how naturally or unnaturally they die. Of course, they will probably live for another 20 years before execution, as well. Is it that important that their life ends a few years earlier by the hands of the state that you spend so many extra millions of dollars to do it? So that you can execute someone who was trying to kill themselves on the train tracks?

If you really think it's that important, I suggest you raise your own taxes by a few hundred a month to pay for it, donate that money, it's so important to you. I'm getting some of that money, so thanks in advance.

Appearing before the grand jury for the 4th time, not being assured that he's not a target, being pressed about details of his prior inconsistent statements? These are usually signs that someone is about to be indicted. In general, one would not appear before the grand jury without a grant of immunity under such circumstances, but of course, politics is not regular circumstances. So, Karl Rove is virtually required by his high political position to continue to appear for grilling in front of the grand jury (much like Clinton virtually had to appear before the grand jury in the Lewinsky matter).

But, remember what I wrote about a while ago, Conservatives generally don't go to prison any more. They are generally immune from prosecution. My theory why: prosecutors are frequently conservatives, and they have managed to make tough law and order consequences not apply to fellow travelers. In general, they have applied over the years to poor people, especially minorities. Perhaps that is changing these days, what with the extremely long sentences for people like Bernie Ebbers, the Tyco folk, the Adelphia folk (they were hard-core Republicans), and some of the other white collar criminals

The difference here, I think, is that Karl Rove is not a conservative accused of doing a run of the mill crime, he is a Republican operative accused of a crime in the course of his Republican duties, actions that were core to his political activities (in general, he's a slimer, and he was sliming someone here, and probably either went overboard, or lied about his actions). In these situations, I have found that the stink generally stops very low down, and the Republicans have managed to keep the upper folk from getting nailed.

Look at all of the lower lever soldiers who have been imprisoned for torturing detainees. Why has this stink not floated higher to the top (such as to the Secretary of Defense, White House Counsel or Attorney General, all of whom approved tactics that resembled torture and argued that the US was not bound by the Geneva Conventions)? In general, it is because Conservatives have managed to avoid accountability at the top for their actions, keeping the blame down low, and even then, protecting their own. I've written before about Oliver North and John Poindexter getting off on technicalities (and the rest of the lot being pardoned anyways), Rush Limbaugh's drug addiction somehow still avoiding prosecution, and other situations.Compare this with the way in which tiny little controversies managed to become impeachable offenses during a liberal presidential administration, and the difference is stark. All of the original basis for independant counsel in the Clinton administration turned out to be spurious, and Clinton almost went down (pun intended) for lying about a BJ. Compare this with what has not even garnered a special prosecutor in this administration, and the comparison is stark.As I've also mentioned, conservatives have no problem utilizing those technicalities they decry poor defendants from using. This is how Rush makes common cause with the ACLU in arguing his (no longer "so called") right to privacy in trying to keep his medical records out of the hands of prosecutors in Florida. I can assure you that Rove and Libby, if indicted, will allay themselves of the full panalopy of their rights, no matter how much they have tried to have judges appointed who seek to undermine those rights. And, ironically, judge will give far greater scrutiny to those rights when examining their case.As I said, all in all, it looks highly unlikely that we will ever see Karl Rove in the waist chains that once adorned the reporter who refused to talk, or people like Susan McDougal, who refused to cooperate with Ken Starr (knowing, by the way, that he only sought her testimony to force her to say what he wanted or charge her with perjury for not following the script). And so it goes, Conservative law and order values tend to get flushed down the toilet when applied to Conservatives (the first US Supreme Court case to cast doubt on the mandatory minimum sentences that were so harsh to minor drug offenders was not a case that shocked the conscience such as 20 years for possession of acid, but those conservative heros Stacy Koon and Lawrence Powell, who were given sentences lower than the mandatory minimums for beating Rodney King, and the conservative Supreme Court, for the first time agreed that the mandatory minimums were perhaps not always mandatory). It is, of course, hypocrisy at its worse, but it is the intersection of law and politics, American style.

Monday, October 10, 2005

Welcome me back everyone, because I'm back in action. Don't ask me where I've been of late, because I have no clue. Actually, that's not entirely true. I have been very busy at work over the last month and a half, and I have been in trial for over a week in a very serious case where I feel my client should walk. I also think that if I give too many details right now, I'll get outed. So far, I've been figured out by a few people around the office. They've kept it quiet, but I know, sooner or later, it'll become general knowledge.

So today, my question is: why anonymity, and does it matter.

Obviosly I have my views on this, since I've kept myself anonymous for this long, and work a bit to keep it that way. I generally feel that being anonymous, it gives me greater freedom to spout off my opinions. Not complete freedom though. Obviously, since I can be figured out, I have to show some discretion over what I say. I can't go and reveal client confidences that would make a difference and that could be traced to a specific client. However, being anonymous, it gives me greater freedom to say something like "my client in a recent murder case said...." It would be pretty hard for that to trace back to a specific client (as long as the comment wasn't too specific). It gives me freedom to criticize generic DAs without revealing who they are. A long while back I was in trial on a special circumstance murder case and railed against the DA at length. If I wasn't anonymous, that would immediately trace back to the DA, and could possibly harm my client.

On the other hand, keeping anonymous has been difficult. I can't be too specific about a case that I've handled, and I can't be too specific about where I am. Otherwise, it will be figured out pretty quickly (even the general clues that I've dropped over the years have resulted in a couple of people figuring me out - but they're friends, so they're not saying anything).

I like being able to speak freely and not worry about what people are thinking about me, as well as what they are saying about the blog and the things I write when I do so. Perhaps I don't like drawing attention to myself, and that would keep me from jumping front/center with attention to who I am.

I am curious about how revealing themselves has worked out for people who previously were anonymous and are now revealed, and for those who were never anonymous in the first place. People such as Patterico work in my field (perhaps very close to my home????) and have come out of anonymity, I'm curious how it affects him (he gets far more hits than I do, and he has branched out as a general conservative political blogger).

I also wonder if my anonymity has kept me imprisoned in this role of discussing mostly legal/criminal issues, and if coming out frees people from some of those constraints. I've received in general very poor reaction to discussion about off-topic issues, perhaps because people either don't think much of my opinions, or don't come to this blog for that purpose. I have a lot of strong views on a lot of different subjects, but have mostly kept them to myself on this blog in part because I'm only seen as "Public Defender Dude."

Anyways, for my regular host of readers who have stuck by me through my long hiatus, I thank you. Pass the word along that I'm back, so feel free to check back soon, and you'll see more rantings from PD Dude.

Thursday, September 01, 2005

My heart goes out to all those living in the anarchy of the mess left behind by Hurricane Katrina. It is a real message, much like the Tsunami that hit Southeast Asia last December, that mother nature always laughs last, and loudest. Just when we think we can tame the environment, it always seems to come biting back at us far harder than we can imagine.

I highly encourage anyone to give money to the Red Cross for disaster relief. You can donate through their website. Please donate something, even if it's just a small amount. Everything adds up, and these people need it in a bad way.

To all my readers in the hurricane zone (as well as anyone else there, of course, but they won't be reading this), my thoughts and prayers are with you.

Moveon.org has a great concept they've put together, called Hurricane Housing, where people offer up housing, or people in need put in requests. Seems like a sensible notion, I hope it's working. If you live in the area, think about trying it out (I certainly would if I lived anywhere near there).

Tuesday, August 23, 2005

The love affair between the police, the tools of repression and many citizens in this country continues apace. For years I have listened to conservatives talk about how we have too many rights in this country (except for the right to bear arms, of course), and this cry got even louder after 9/11. To be fair, there has emerged a vocal minority of conservatives that have begun to share common cause with groups like the ACLU and resist the further erosion of rights in this country, but they are a very small minority in the party (note how the Republicans in Congress will probably overwhelmingly make the Patriot Act permanent, despite misgivings from many Democrats and a few Republicans).

The latest example of the over use of the police and paramilitary to repress took place in Utah, where the police brought in over 100 police officers, including the SWAT team, to take down a rave for a lack of a permit (of course, they had a permit, but the police reasoned that plenty of crimes were taking place on that private property, so the love of private property had to give way to ruthless law and order).

There is even apparently a video of this event as well, where the police use police dogs, tear gas, and profanities (what happened to Mormons not swearing?) while breaking up the event and cracking a few heads (alright, I don't know that any heads were actually cracked, but you know what I mean). The police chief, despite the video proof, went on TV to say he saw the video, approved of the actions, and that there was no force used and no profanity, but that what happened needed to happen to these people.

There was apparently some kind of a whiff (pardon the pun) of political repression going on here, there was talk that this was a big anti-Bush rave in advance of his most recent speech there. Here is a quote that I got from Objective Justice (I will freely concede that this appears to be 3rd generation information, I've tried to get more information on the subject unsucessfully up to now, but certainly this fits in with the MO of the Bush administration in trying to dampen down dissent, such as the fake Secret Service person expelling people from a public Social Security event wiht Bush in Colorado because they had anti-Bush bumper stickers on their car, and later tried to justify it. That is only one of numerous attempts to stifle dissent that the Bush administration or their lackeys have engaged in). Here's the quote:

A source inside the Utah government reports that this action was undertaken out of fear that the Rave would be used to rally support for the protest against Bush's upcoming Utah visit.

I have to say, I can't imagine the police ever going in to an event that's mostly Republican or conservative with such force. This is much more force than was used to remove Israeli settlers (although they are conservatives too, so that's no surprise - police are the same the world over, apparently). I know, I know, Republican-oriented events probably don't have much drug use at them - at least openly, so there wouldn't be the call to crash it like this. But really, a bunch of 15 to 25 year olds smoking pot and doing exstacy, do you really need 100 SWAT team members?

Of course, the law and order conservative types in Utah probably applaud this action. But, according to the accounts of the partygoers, exactly how are you protecting children (from drug use, of course) by coming in there with attack dogs, AK-47s and M-16s, tear gas, and beating people? And why did they need to confiscate so many cameras, or at least force people to turn them off? Whenever you see that stuff, it begins to look like the Condaleeza Rice visit to the Sudan, where reporters were jostled and roughed up (in her presence) after asking difficult questions of the Sudanese president.

This goes back to my previous posts about zero tolerance and things of the like. This take no prisoners, brook no dissent, allow no discussion attitude of police and other authoritarian leaders is truly disturbing. It's so ironic that as we try to make the rest of the world more free, we aren't only reaching out to them trying to pull them closer to us, we're also moving a little closer to them in our attempt to help narrow the divide. If this is narrowing the divide, I'd like to keep the gulf much wider.

Wednesday, August 17, 2005

Doesn't it seem that the only people who ever get off on technicalities, and aren't the slightest bit ashamed of it, are conservative Republicans? Think about it, they spend their time railing against the 4th amendment (the Republicans in Congress in 1996 once voted down the language of the 4th amendment in a crime bill, arguing that it was anti-law enforcement). They talk about this being a criminal bill of rights, how the Courts have created a right to privacy that doesn't exist, that it only allows criminals to get off on a technicality, all of these other idiotic anti-constitutional things.

Until it applies to them.

I really should start a website dedicated - much like the chickenhawk database of pro-war Republicans who managed to somehow miss serving in the Vietnam War - to crusading Republicans who talk tough on crime and against the Court's protecting people's rights to privacy, while at the same time shamelessly invoking as many of those rights as possible to ensure that their own crimes go unpunished. All so that they can go and rail some more about the system and how it favors criminals who get off on technicalities (like them, but we don't need to mention that now, do we?).

Of the most well-known that roll of my tongue without thinking long and hard, I come up with the classics, like Oliver North and Admiral Poindexter (cases reversed by the same judges who appointed Kenneth Starr as "independent" counsel due to potential tainting of their immunized testimony before Congress), Kay Bailey Hutchison (she had her illegal fundraising case dismissed when the Judge decided to rule on her suppression motion one item at a time, and the prosecution decided not to proceed that way), but none can compete for hubris with Rush Limbaugh.

The latest has Rush making new efforts to derail the prosecution into his doctor shopping case (do you think he'll get 25 years like that other guy in Florida did?). Read the article to find out all of the machinations Rush is using to avoid responsibility for his illegal acts, something he regularly accuses liberals of doing while bashing them on his show.

Do you think he'll ever concede the cognitive dissonance? Don't bet on it. He'll still keep bashing his liberals, and his audience, who still believes that Saddam was responsible for 9/11 and had WMD, will continue to believe Rush is a martyr being unfairly targeted, and that there are too many laws too lenient on criminals (not Rush, though).

Wednesday, August 03, 2005

A big thank you to Sean Sirrine, over at Objective Justice, who has kindly invited me to guest blog on his site. To start with, I have cross posted my previous post on his blog. However, his blog is certainly worth checking out, especially the post in which he offers up a review of the legal blogosphere, including some insightful (even if I may not totally agree with them) comments about Supreme Court nominee John Roberts. Go check his site out.

Sometimes I feel like it is time for normal people in the US to just drop out of the general society. This week has brought 3 stories that make me wonder if now is perhaps the time to do just that, and whether our country is really starting to be taken over by the loonies. 2 are criminal law stories, the other is an educational/political story.

In the last couple of generations, the only people who have dropped out of society in large numbers have been hippies and Christian fundamentalists (alright, I'm sure that there are other groups that have as well, these come to mind as the 2 largest and most well-known groups). Christian fundamentalists have jumped back into society in very strong numbers, and now I'm wondering if it's not time for those of us who are not Christian fundamentalist to drop out.

Consider.

In Utah, an 8 year old boy was arrested after telling his mother that his 14 year old female babysitter (for once, a female pedophile - you don't see that happen much!) dared him to touch her breast. When the mother told the police, the DA FILED CHARGES AGAINST HIM!!!! That's right, they filed charges against him for lewd conduct!!! What kind of a nutty society does that? The police said that he was a "willing participant!"

What does this mean? Well,if he's a willing participant, then how can it be lewd conduct, unless he's somehow a victim of it? If he's not a victim, what is exactly is lewd about it? What kind of fundamentalist idiots (I'm just guessing because it involves sex and Utah) would consider charging an 8 year old on these facts? Does this mean that in every child molestation where the victim doesn't resist, the victim is actually a co-participant, and therefore a defendant?

What kind of a society will this make? Will this make us better, or worse? For me, it says that perhaps it's time to retreat behind my liberal walls away from conservative society that condones such idiocy. You don't go to the "authorities" to resolve disputes anymore, since the authorities will mess them up worse than they were before you went to them. The authorities are the problem. What parent will every bring their kids to the police complaining about something happening to them if they think their kid may be arrested.

Of course, I wrote last week about the case of the teenager charged with murder and serving in CYA until he's 25 (incidentally, his mother finally spoke publicly about why the judge and DA screwed up so badly on this one, read it here), and here's another one.

An 11 year old girl was arrested, jailed for 5 days, and charged with felony assault (facing 5 years in the California Youth Authority) for throwing a rock at a boy. Apparently, while in her yard with her younger siblings, a few boys came by and threw water balloons and rocks at her, striking her in the face a couple of times. She threw a rock back, hit him in the face, cutting him (not terribly, mind you, he'll be just fine, and probably will think twice before picking on some girl again). The police came, spoke with him and his friends, and arrested the girl and hauled her away. This happened in Fresno, in rural central California. The girl is from a poor hispanic family, and the family charges that she is being treated this way in part because poor hispanics are far easier to mistreat than rich white people (no debate from me there, I saw far worse growing up, and no one arrested, but maybe that's due more to changing times, but I still think Beverly Hills youth get a greater pass).

Again, this makes me want to scream. Of course, the mayor of Fresno applauds this, it's just so easy to want to get tough with them violent out of control teens and poor folk swamping our country, but please! What is going on here. What is happening to our society when no one says enough, and the mayor applauds the police for doing this. How about saying to the parents of both kids - "hey, control your kids." But, it is so seductive to moralize, to talk about evil, to gleefully punish and lock up, to sermonize that evil must be met by harsh measures, with no sympathy for those who would fall off the path of the righteous.

This last part is not law related, so if you get tired of me talking about non-law related things, skip it, but.....

The final straw that makes me think it's just time to retreat into my own little world of normal people who believe in simple things like, say, science, is our own president's little comment that he thinks that evolution and intelligent design deserve equal play in the schools, that we should teach both, show both sides of the issue. This is so crazy on so many levels, that it would require a book to say them all, but I'll try just a few.

First of all, intelligent design isn't a theory, it's about poking holes in another theory - evolution. Now, poking holes in theories is something that I'm rather fond of, it's sort of my profession, but I don't substitute my profession for actually proving something. I'm just trying to create a reasonable doubt about that theory, not trying to substitute it for what may be the truth, or may not be quite believable as the truth. All intelligent design people try to do is create doubt about evolution - fine enough - but just so that they can substitute their completely non-scientific theory - that it's all bible based - in it's place. That's not teaching science.

Bush also says that people should hear both sides, and I certainly don't disagree with that - but NOT IN A SCIENCE CLASS!!! Debate the issue in civics classes, raise the issue that there are missing pieces of the evolution theory in the science class, but what are you saying? Well, we can't prove beyond all doubt that this is the way that things happened, so we're going to teach you about Genesis right now in your biology class for the next 6 weeks. ARRRRHHHHHHHHH!!!!! What kind of a nutty country do I live in?

Bush says local schools should be able to teach whatever they want. Well, didn't he push No Child Left Behind so that there would be national standards? Let's face it, no evolution, no biology, no organic chemistry, pretty much none of the advances that we've had for the last, oh, century or so. Is that progress? Is that going to help us compete with the Chinese and the Indians in getting good jobs?

So, at times like this, I really feel it is time to get together with normal people the country over, and form our own school districts, our own police forces, our own institutions, so that we can push all this wackiness out of our lives. It really does drive me crazy.

Friday, July 29, 2005

There is this case that has been mildly captivating Southern California lately of a 13 year old boy who hit his good friend's older brother with a baseball bat after the older boy either teased him or bullied him. He hit the boy once in leg and once in the head, and the older boy died. The 13 year old was just sentenced yesterday to the maximum he could get in California - serving in the California Youth Authority (CYA) until he is 25 years old.

There are 2 things of interest to me here: One is the fact that he will get the maximum penalty and serve for 12 years with the very worst youth in California (and when I say the worst, I mean it, CYA is notorious for being a vicious place to stay, a veritable incubator of later crime. I can't tell you the number of clients I've met who managed to turn from generally benign unpleasant folk, to truly terrible after a nice stint in CYA). By all accounts, this was an isolated incident in which the boy lashed out at an older and much larger kid who had been something of a bully. The defendant was otherwise a good student, teammate, and person who screwed up (royally) one time only. I think that it's clear he will never be a good person again, and that likely would not have been the case if he didn't go to CYA. The thirst for revenge, for even one isolated incident, was too great to look past what was in society's best interest. Contrast this with a case where someone takes a gun and sprays it at someone, or has a long history of gang involvement and generally anti-social behavior. This person is not like that.

What is more interesting to me, though, is the long transformation of California law to ensure that more and more people are held responsible for their actions in criminal court, and as murderers, rather than as committing lesser crimes such as voluntary or involuntary manslaughter.

By all accounts, this kid did not try to kill his friend's brother. By all accounts he was either trying to hurt him in revenge for teasing (before you yell at me, I agree, that's not allowed and should be punished), or using the bat against a larger bully in an inappropriate manner (since he first retreated and then returned with the bat). Either way, it is not like he walked up with a gun wanting to plug a few shots into him and kill him. However, in California, you don't need to intend to kill someone in order to be guilty of murder. In fact, you don't even need to have the thought anywhere in your mind that someone may die from your actions.

In California, there is a principle called "implied malice," which says that if you do an act that is inherently dangerous to human life, and someone dies as a result, then you are guilty of murder. The best example of how this should be applied is if you decide you want to go driving on the sidewalk to avoid traffic, so you do, and kill a few people. Clearly, driving your car into pedestrians will kill them, you and anyone else would have to be aware of that, so even if you didn't want to kill those people, you are still guilty of murder under the "implied malice" theory.

Of course, like all good theories that California prosecutors, judges and politicians have gotten their hands on in their zest to make as many people murderers as possible, the theory has mutated into absurdity. Just think about how far that can be taken. First, they started prosecuting multiple DUI offenders who finally killed someone with murder rather than gross vehicular manslaughter (a Watson murder). The theory, you clearly knew that driving under the influence was dangerous to human life, since you previously went to that alcohol class where they told you so. Thus, you were under notice, and now you're guilty of murder under implied malice.

Some prosecutors got upset when a drunk killed a particularly pretty or popular person, and expanded the law so that you didn't have to have gone to the class before. Watson murders have even been extended to where other traffic violations happened.

In a another famous case, 2 San Francisco lawyers were convicted of murder when their dog killed a neighbor (the judge reduced the case to a manslaughter, the Court of Appeals overturned the trial judge, expanding implied malice along the way, the Supreme Court is now going to rule on the subject). Obviously, they didn't want to kill anyone, but they were guilty of murder under the theory that they knew their dogs were dangerous, and anything that flowed from that they were liable for.

Now the Knollers (the dog bite defendants) were distasteful people, they adopted a white supremacist prison inmate and took in his dogs. But the way the law is going, prosecutors will have no problem bringing murder charges against any distasteful person for any death, because just about every death is foreseeable in some crazy way - in hindsight. Anyone can look back on a death and say "damn, I shoulda figured that was coming!" Drive 10 miles over the limit and someone dies - murder, why not? Cars sure are inherently dangerous. Throw your kid up in the air while playing with him and accidentally drop him? I know everyone does it, but hey, it's still dangerous, you're a murderer if they die. Play a prank on someone and pull a chair out from them when they sit? Alright, it's silly, and you probably shouldn't do it, but why not charge murder, after all, they could hit their head....

Think I'm being crazy? Here's a real one (again, distasteful defendants). 2 guys with a meth lab try to burn it down to avoid detection (see, I wasn't lying about distasteful), the fire spreads, the fire department comes along to put it out, they even bring along planes to drop retardant on the fire. Would you believe it, 2 planes collide, and someone dies in the crash. So these otherwise pillars of the community are now charged with murder. You see, when you start a fire, it's foreseeable that firemen will come to put it out, and it's also foreseeable that they'll send a plane, and if they'll send one, it's foreseeable that they'll send 2, and when 2 planes are in the sky, it's foreseeable that they will collide and kill someone. Therefore, these guys are guilty of murdering the pilots. I have to think that is among the more absurd cases filed. But, like I said, when you have distasteful people, the sky's the limit. The only problem, when their appeal is (invariably) denied, through some tortured reasoning like above, it affects everyone, since the next DA may decide to charge this against a real pillar of the community, or you.

Tuesday, July 19, 2005

I know that this case is not typical, in that it involves prescription drugs rather than "illegal street" drugs, but far as I'm concerned, the issues are the exact same.

John Tierney writes today in the NYTimes about Richard Paey, a man who became disabled after getting into a traffic accident and who has been in severe pain ever since. As a result, he's become addicted to the pain killers that allow him to do things such as, say eat dinner with his family or go to his kid's school play. It also resulted in his arrest and conviction for, get this, drug trafficking (it is considered automatically drug trafficking since it was over one ounce, which was about one prescription, not because he ever sold, which the Florida prosecutors concede he never did). This evil, dangerous criminal is now serving a 25 year sentence, the mandatory minimum under Florida law (according to the DA, the sentence is probably not appropriate for his situation, but he deserves it since he turned down first a no jail offer, then a 5 year offer, so it's all his fault he's serving 25 years).

Of course, prior to these evil actions by this despicable person, he was a University of Pennsylvania law school grad (unable to take the bar due to his accident), and his wife is an opthamologist, so you can understand that it's important to make sure that someone like this stays behind bars as long as possible to keep our society safe (at least I guess that the prosecutor would say something like this).

Think about it, this case is the symbol of evil, not by the defendant, but by government. When this happens, it is not a free society, it is a barbaric society. Sure, the government didn't try to chop off his limbs for stealing bread, or behead him for blasphemy, but the difference is fairly minor.

Do you want to know the cruelest irony? Apparently he now gets all of the medication that he needs while in prison. They have him hooked up to a morphine pump so he's better medicated than he was on the outside. Our society imprisons people for relieving their pain in order to relieve their pain.

Absolutely sick and evil, I'm disgusted, but of course, it's not so atypical. The only difference is that here they nailed a white, upper middle class educated person rather than the boatload of poor minorities that they usually warehouse for the rest of their lives for doing little wrong.

Anyone want to try and defend this idiocy. I'm sure there will be some hyper-conservative who will try to do so, but before you do so, don't forget about that conservative icon, Rush Limbaugh, who will certainly never receive a sentence of 25 years (conservatives don't do prison), but who probably committed far more insidious wrongdoing than this person did.

Wednesday, July 13, 2005

Here's a hint, most defense lawyers would say that having a client executed is about the worse thing that can happen to you as a lawyer. But, I'm wondering. Do you think that most defendants would prefer the death penalty to life without parole?

I just had my first in depth conversation with my latest special circumstance client today. He is clearly a good candidate for the death penalty. Both the type of case and his history make him the class of defendant that the prosecution could decide to seek death on. Furthermore, with his history and his type of case, I really think that a jury could sentence him to death, no matter what I try to do on the case. My goal here (he appears to be dead to rights in the guilt phase due to DNA, but we'll see about that as the case progresses, but as it stands, he has a very difficult guilt phase, to put it lightly) is to save his life and prevent him from getting the death penalty, even if it results in a sentence of life without parole.

What does he say? He doesn't really care. His attitude is that he's spent much of his life in prison already, will probably spend the rest in one form or another, and why not spend it on death row. He's in his late 30s, and it takes 20 years to get people from court to the chamber in California, so what the hell, get death, what does it functionally matter? He's probably going to die a natural death in prison anyways. And life on the row is better than life in the highest security modules he would otherwise be housed in if he's given life without parole.

Of course, this is a nightmare for me, I don't want to have someone on the row. Logistically, even if he never goes to the chamber, I will have my life turned upside down trying to fight the case, and dealing with all of the obvious complaints of ineffective assistance of counsel, having to recreate the case dozens of times for the state and federal appeals, and the habeaus corpus proceedings. All in all, a death verdict would be terrible. And that doesn't even deal with the feelings it would cause in me of "what if," and "why not this," and guilt over my performance. No, I don't need this to happen to me.

But, is it better for him? How do I convince him to try for life over death? Is it in his best interest? Is this being selfish, all about me, screw what he feels?

Friday, July 08, 2005

The news I've just heard is that after Bush touches down from his Scotland trip, William Rhenquist is going to announce his retirement, giving Bush, in effect, 3 appointments to the Supreme Court (Rhenquist is Chief Justice, so there would could conceivably be a situation where Bush has to appoint 2 new associate justices, and elevate one of the present associates to chief justice, which would require Senate confirmation).

If he has 3 appointments, then he has the opportunity to play to each of his "constituents," the nutty right wing part of the party, and the people who would've been considered nutty right wingers 20 years ago, but are now considered moderates (they may actually believe in evolution, for instance). The extreme right wing has launched a scorched earth strategy against an Alberto Gonzales appointment (he of the tortured torture memos), worried that he may oppose having churches write the laws of the nation. Ever since his opinion from the Texas Supreme Court in favor of striking down a law requiring parental notification for abortions, they have viewed him with suspicion. While I don't think he is such a great pick for the court, he would clearly be presented as a compromise candidate by Bush. It would also free him up to put a total right wing cultural warrior to the bench in the other open seat, and appoint Scalia or Thomas as chief justice.

However, I have another possibility.

I think that, while Gonzales is clearly a possibility, I wonder why I've never heard of this person mentioned as a possible appointee: Orin Hatch. Think about it, he would fulfill all of the requirements for Bush and all of his constituents: He's very conservative, he has tried to put through every Republican nominee for 2 decades, while surrepticiously trying to bring down Democratic ones (remember back in the 90s when Republicans would deny Democratic nominees that now-sacrosanct up or down vote? Hatch, as chairman of the judiciary committee, was a prime perpetrator). But, he is a Senator and, by all accounts, a well-liked member of that body (unlike, say, John Ashcroft, who was disliked by enough people on the other side that they voted en mass against him as Attorney General).

I think that Hatch would be a cinch, and he would be conservative enough for the right while being acceptable enough to Democrats in the Senate who would undoubtedly confirm him. Then, after that, Bush could appoint the right wing nut job and watch the Democrats attempt - and probably fail - to filibuster that nominee. They'd have their right winger in there, though, and that would be enough to push through the other one.

So, you read it here first, I think Orin Hatch is my sleeper pick for one of the Supreme Court openings, and he could even be the pick for chief justice, which would mean that Bush wouldn't have to fight to get Scalia or Thomas appointed as chief justice and put them through another confirmation hearing (remember, Scalia sailed through confirmation in large part because there was a long, acrimonious confirmation process in 1986 while elevating Rhenquist to the chief justice job, much of the 1950s, 60s and 70s (including Watergate) was rehashed while Scalia, one of the most reactionary justices in judicial history, was given a lifetime appointment. It's a good strategy.

Thursday, July 07, 2005

This book, Courtroom 302, comes highly recommended by Los Angeles County Public Defender Al Menaster, as a very true to life tale of what goes on in a courtroom over the period of a year in the criminal justice system (or industry, as Al Menaster calls it).

I have not read the book, yet, but if Menaster's review of it is any indication of how good the book is, then I am sure I am going to find it fascinating. Here's some of what Menaster writes about this book, and how it relates to our jobs as public defenders:

Reading Bogira's discussion of suppression motions made me think about police perjury. We know that the police routinely perjure themselves when testifying in motions to suppress evidence and confessions. Yet how often do we win suppression motions, not based on some defect in the police version, but because the judge rules that the police officer lied? I have never won such a motion, and even if you have, have you won more than five? Ten? So what percentage of police perjury is being called for what it is? One one-hundredth of one percent? Yet you almost never hear about this topic, and judges simply won't find that the police are committing perjury, even though they know perfectly well that perjury is routine. Take the Rampart scandal. We now know for a fact that the police lied about hundreds of cases. How many of those cases, when they were going through the system, were dismissed by judges who found that the police were lying? Exactly none. What better proof could there be that the justice system is simply not about justice and has little or no chance of actually achieving anything resembling a just result in any case?

Bogira's book is well written. He tells the stories of the many cases going through this one courtroom, cases typical of cases all of us are handling. This is an important book for all of us to read and reflect on.

Here's my final insight. I humbly submit that there is only one person in the courtroom actually trying to make justice happen. You know that's not the judge, the prosecutor, the police officer, the victim, the court reporter, the bailiff, or the interpreter. If you are not trying to make justice happen, no one is. Our challenge is to be the only voice for justice in an industry gone mad, an industry trying to push through cases at top speed and secure high conviction and incarceration rates, and which can't be bothered with trivial stuff like actual justice. We must fill that role, because no one else will.

Since this review has not been released to the general public, I am not at liberty to reprint more of it right now (this is reprinted with Menaster's permission), but the review has left me very eager to read the book, and for insight into the industry that is really the blunt object of what democracy is all about (the right of government to make people disappear, either temporarily or permenantly), this seems like it should be required reading of all who care about what kind of a country we want to live in.

Saturday, July 02, 2005

People often ask me the toughest part of being a public defender, or a defense lawyer in general. Surprisingly, the toughest part of doing this is the realization that you don't represent one person, but you represent thousands of people, not just now, but in the future.

When I speak to a DA or a judge about a case, I cannot do so with an eye only to that one case. If I were to present myself with the attitude that everyone is innocent, that every cop is lying, that every prosecution is tainted, etc, then I will quickly wear out my believability.

But, that is a tough thing to give up when you consider that every client is entitled to all of my best efforts, including a presentation on their case that presents them in the best possible light. How do you reconcile these two often very adverse duties? If I go into court and suggest that the clearly guilty person is innocent, a victim, or whatever, what will this do to all of my future cases when it becomes clear that he is not? If no DA can believe me, and no judge can believe me, then my ability to do my work well is severely curtailed. You can be a good lawyer and be trusted and respected by your opponents (I'll generally lump the DA and Judges into my "opponent's" corner).

Does this mean I have to kiss their collective asses so as to curry favor with them? I don't think so. I believe that they can see me doing my work hard, doing all of the things that need be done, without grandstanding on any particular case. They can realize that I have things issues that need presenting, and they will see me do it without a lot of yelling or shouting or personal emotional involvement. I believe that getting personally and emotionally involved is a bad way to represent your client.

But, in the end, there is that serious question, are you representing this client? Or your future ones? Or all of them? How do you decide which client deserves the ranting, yelling screaming and declarations of innocence on his behalf and misconduct on everyone else's? Is it fair that the lawyer decides this? Is it ethical?

One last thing, and I have brought this up before. Did Mark Geragos ultimately hurt himself for the future with his representation of Scott Peterson, as well as his appearances on CNN? I don't know, and I'm not pointing to anything in specific that I disapproved of, but this is an example. When you go so far in declaring the innocence of your client that just about everyone believed to be guilty, have you hurt your credibility for the future? However, was there a different way that he could've represented Peterson to the hilt without doing that?

Food for thought. I'm curious especially about the thoughts of other defense lawyer's, as well as prosecutors or any judges who may be lurking here. Also, any legal ethicists have any thoughts on the subject. As always, anyone else is free to comment as well. Please post a comment and let me know what you think.

Friday, July 01, 2005

I can't think of any bigger event in the legal world that's going to happen than the retirement of Sandra Day O'Conner. This will have lasting reprucussions and will affect just about every aspect of current American life. Do we become a more theocratic state? Do the police have more and more unfettered rights to violate the privacy and homes of citizens in this country? Does more and more power get consolidated into the hands of fewer and fewer? Do the historic acheivements of minorities over the last half century get reversed? In short, her replacement is a referendum on everything our country stands for. Do we want to look back on the 1950s, or the 1920s, as some kind of a utopia that we have to try to recreate? Or do we recognize that the society we became after the New Deal has lead to our country being the strongest, most vibrant, and good countries in the world. Progressives point to the progressive era started by Teddy Roosevelt, and then the New Deal, started by Franklin Roosevelt, and finally the 60's and the 90's as the eras that have made us the greatest country in the world. President Bush will seek to appoint someone who believes the opposite, that those failed our country, and that we became the great society we are in spite of those eras.

The choice could not be ever clearer. Thank God that the fillibuster is still intact.

Tuesday, June 28, 2005

I've written before about how idiotic I find cop "expert" opinions frequently are. I basically feel that these are political positions masquerading as some kind of strong science. Police and prosecutors put up these silly opinions all the time to "educate" the jury about certain crimes. As the crimes have become more plentiful, and as the level of activity that will allow you to be considered violating that crime increases, and as the number of silly enhancements have increased, so have the number of times in which police officer "opinion" testimony comes in.

Let me give you a little hint - police officer opinion testimony is always that the person charged is guilty - their opinion as to some area of their "expertise" will always conform with that opinion, always, no matter what the circumstances.

Someone has a single joint - could be possessed for sale. The police saw him smoking it? Still could be possessed for sale. He said he wasn't selling? Drug dealers frequently lie, he still could be possessing for sale. They didn't see him do anything consistent with selling? Drug dealers are cagey people, he still could be possessing it for sale, and therefore, the officer still has that opinion, and the jury hears a "respected" member of law enforcement give them the opinion as to the ultimate issue in that case, whether it was possessed for sale, that is almost impossible to disprove (how do you disprove a negative?).

But in the area of gangs it has become even more absurd. Proposition 21, the "Juvenile Justice" bill (put in quotes here because much of the law it changed had nothing to do with juvenile law), made any crime committed for the purpose of a gang a strike. Paint your nickname on a wall, not only did it just turn into a felony (as long as someone can say it costs $400 to paint over), but it is also a strike. Pick up any new petty theft the future and you may get 25 to life (if you painted 2 walls, that is, and got 2 strikes). It gets even worse, though. When giving their testimony about gangs, police are able to bring in any unfavorable character evidence against the defendant that they want, and not just against the defendant, but also against any of his friends, family, acquaintances, etc (they may all be in the gang, after all).

So now, just about any innocuous offense can be alleged to be committed "for the benefit of the gang," no matter how non-gang related it really is. Have a gun? Possessed for the gang. Have some drugs? Possessed for the gang. Write a bad check? Did it for the gang. Slap your wife? Did it for the gang. Rob a bank? Did it for the gang.

And now, no matter how weak a case is against any particular defendant, even if the person is really innocent, the jury will hear all of this terrible character evidence - much of it not even related to the particular defendant but to his acquaintances, that will prejudice them against him even further, working to prevent him from getting a fair trial on the particular facts of the case.

And worse of all, the DA now won't dismiss these idiotic gang allegations once filed. So, even if you have someone who is guilty of possessing that gun, or having a couple of joints, or writing that bad check, or scratching their name into the bus bench, they must now plead to a strike to resolve their case or go to trial and face the mountain of bad character evidence that will be introduced against them, all ensuring that no jury will ever give them a fair shot.

This is the daily level of idiocy from police and prosecutors we have to deal with. I'm not saying my clients are angels, believe you me. But, they deserve a fair shot in life without having a pre-paved highway to life in prison being set out before them by the time they're 18 years old. Give these people a shot, because, believe me, if you don't give people a shot, they will be far more likely to take one at you.

Thursday, June 23, 2005

I've been reflecting on how it was that the prosecution managed to lose a molestation case where some members of the jury said they believed that Jackson had probably molested in the past, but they couldn't prove it in this instance. Also, how they lost a case where the whole world looked at the defendant as a weirdo molester, and yet they couldn't get a conviction. For any regular practitioner in criminal law, both of these scenarios seem unbelievable, either one would almost automatically result in a conviction. Clearly, race had nothing to do with it, and celebrity cannot explain all, either. Unequal resources probably didn't do it.

What did do it?

I have a few thoughts on what the prosecution did in this case, and what the biggest mistake prosecutors tend to make that allow defense attorneys to win more cases than they probably should. I don't think that these are secrets, and I can't imagine that any prosecutor reading this post who otherwise disagrees with this notion is going to change based on my post, and that any prosecutor who agrees with my basic ideas will be hearing anything new based on what I'm saying.

I think that a prosecution that is tight and focused is the best kind of a prosecution. If you have 15 potential charges against someone, but 10 of them are weak, charging only the remaining 5 would be the best course of action. Obviously, this leaves the defense open to questioning to the jury "why haven't they charged all of this other stuff if it's there," but this may not even make it into the jury's mind. In the Jackson case, the basic charge that was going on here was the alleged molestation of the kid by Jackson. These 3 counts alone would have subjected Jackson to 24 years in state prison (maybe one of them was an attempt, and would have only subjected him to 20 years instead). Why would they bother to go after these idiotic conspiracy charges, or the allegations of giving him drinks, when they had the basic charges that they could file that would give him the most amount of time. By not thinking strategically - give up the extra few years and get him on the major charge that can keep him in prison for double digit time - the DA weakened their case with less provable charges.

Why would the DA do this? Part of the reason has to be the obvious vendetta that Sneddon had against Jackson based on Jackson buying his way out of the previous case a decade earlier. Sneddon obviously had it in for Jackson since then, something that Jackson probably exacerbated by writing a song mocking or criticizing Sneddon. The other reasons I can only make a guesstimate for: Sneddon wanted to throw the kitchen sink at Jackson to bolster the case (I think it usually undermines it), Sneddon wanted look extra tough in the public eye, for the international audience, Sneddon wanted to prejudice the potential jury pool and public opinion against Jackson, or most likely, Sneddon believed everything the family said to him hook line and sinker. Another probability is that once filed, Sneddon felt he couldn't dismiss any of the charges against Jackson without looking really weak when he began to find out the some of the allegations against the kid's mother. Again, much of this is his fault, by pursuing the case in the grand jury instead of through a preliminary hearing, he sped the case up, and he prevented the defense from having a free shot at his witnesses, but he also gave up a great opportunity to see what the defense was thinking based on the way that they fought the prelim. He could've listened to the cross examination of the mother that would've taken place, realized that she was damaged goods, and quietly (as quietly as possible, that is) gotten rid of those charges.

What would've been the result of this, had he proceeded only on the molestation? To begin with, Sneddon could've gone to trial with just a couple of witnesses - just the kid, for instance, and the cops who interviewed him, as well as that supposedly damaging video of him reporting the crime. What would the defense do then? Without the conspiracy charge, the mother and family would probably not be relevant witnesses. Even if they were, the defense would have to put them up in order to elicit damaging information about what grifters they were. But, this is a different beast entirely than trashing a prosecution witness. The defense would be calling a generally bad witness to get a few kernels of good information out. They would not be able to lead the witness until the judge made a finding that they were being uncooperative, perhaps not at all (didn't some commentators say that Mesereau's cross was some of the most devastating cross they had ever seen?). Imagine if the mother was the defense's witness, and the prosecution was able to lead her through all of the stuff they wanted her to say? They could only bring out the few good things, since they didn't need to rely on her for any of the conspiracy charges, so they could've discarded all of that wacky scenario that she brought up about being abducted and held prisoner - something no juror appeared to ever seriously consider.

I could only imagine what a 10 witness, 5 day case would've looked like here. The DA calls the kid, his brother perhaps, and just a couple of the witnesses to prior bad acts. The DA brings out how he bought his way out of other case (or not, perhaps this raised the specter too much of a shakedown in this case). Call a couple of cops about his general wackiness and things that he said about being roughed up by the police, and how the wits statements to the jury were similar to what they said to the police, and then rest.

The problem is, especially in high profile cases, DAs tend to fear undertrying their cases. One of the most devastating DAs that I know of is one who has done more jury trials than any DA in California, over 600. His cases are short, to the point, and leave out all of the fluff. He'll dismiss all weak or tough to prove charges before trial, and focus on the meat of the case. He also is a phenomenal trial lawyer and gives a great closing argument. He thinks creatively and strategically, not only about what he can prove, but what the result will be if he puts up too much evidence.

I have found that the most creative and best thinkers are defense lawyers. In general I believe this because I think that the defense side attracts people who are more creative, who are freer thinkers, who are less authoritarian and don't think of things in a top-down manner as is more common in law enforcement, military, or other stricter and more hierarchical organizations. Defense lawyers tend to be more individualistic, contrarian and non-conformist, so they don't get caught as easily thinking inside the box. These are visceral feelings on my part, not well formed or documented, but consistent with what I have seen over my years of practice. The best DAs are the ones who are able to think outside the box well, who anticipate several moves away, and who don't get trapped into believing their own case too much. More than anything, though, defense lawyers are used to making mountain out of a molehill, since that is what we so frequently are given to work with. DAs usually have the deck stacked so much in their favor (at least here in California), that they are rarely forced to work in the manner that defense lawyers are.

I think that Sneddon made a large mistake in being too believing in the family, especially the mother. If he didn't believe her, why would he proceed on the counts that were predicated on her testimony, and which required her to even hit the stand. If he did believe her, it probably owes more to the hubris consistent with so many California DAs who are used to winning just about all of their cases, and who work with a missionary zeal and belief in the justness of their cause, regardless of the glaring weaknesses that shout out at them. Failure to notice these weaknesses and deal with the case accordingly may very well have caused him to lose this case.

Tuesday, June 21, 2005

I spend half of my murder trials thinking of ways to get a manslaughter out of a murder (this includes offers to plead to manslaughter, often to the maximum of over 20 years). Most often, these attempts fail. So, I'm wondering, and perhaps someone can tell me, how did Killen get a voluntary manslaughter out of his particular set of facts (I understand, by the way, that just about any prison sentence is probably a life sentence for him, and that as compromises go, his is not particularly helpful, but still, you never know what may happen down the road to let him out at some point, or what a judge may do with a manslaughter conviction coupled with his age - he may not get the rest of his life in prison after all)?

Let's see, if I recall the case correctly (admittedly, most of my facts come from reading recent newspaper accounts, accounts from classes I took in college, and sadly, the movie Mississippi Burning), the local Klan stopped these three guys on the road and lynched them, then buried the bodies. Did the defense put up a defense of "heat of passion," that somehow the local Klan was so inflamed by federal interference into their local customs that this amounted to a heat of passion? If so, how does that square with his defense that he wasn't there that day? Did they put up a defense of "I wasn't there, but if I was I was acting under extreme heat of passion?" I had always considered those to be losing arguments, and had counseled my clients to pick one - heat of passion/self-defense or alibi, but not both. Maybe I need to reconsider.

Or, maybe, the old south really lives on in some form or fashion. Was this jury trying to cut this guy a break because he was a good old boy that had the right idea but was a little misguided in the way he went about it? I dunno. I'll read more to try and get some insight. If anyone knows, I'd be interested in their thoughts. Please respond to the comments so I can start to understand. Was this a legal decision, or was it a political one?

As a backdrop, I have to believe that those southern conservatives that run Washington these days won't rail against this verdict and call the jury "kooky" the way they do against things like the Michael Jackson verdict, or, perhaps a closer analogy, the first Menendez jury (where the jury hung between murder and manslaughter).

UPDATE: Thank you to Jonathan Soglin for pointing this out, but I guess it shouldn't surprise me that the NYTimes has a better rendition than CNN of how the jurors reached a verdict of guilty only on the manslaughter and not the murder. They report here that some jurors said that there was insufficient evidence of Killen's intent in setting this up.

Mr. DA mentions the possibility of misdemeanor manslaughter, before pointing out what has been sitting there in my mind the whole time - Jury Nullification (this is probably in the minds of many, but people are too afraid to raise the old specter of white southerner jury nullification in civil rights trials as being "unfair" to the south, and since the south does run the country these days, we can't be mean to them).

I just can't see what else it could be. Is there any doubt that there was a plan from the very start to kill these civil rights workers. Let's face it, evidence was presented that Killen gave instructions on where to bury, how to bury, to wear gloves, they used the local police to detain the people to put the plan in action, they killed them for no reason at all. I'm feeling pretty inadequate right now, I have trouble getting manslaughters on cases where one gang member shoots another gang member who previously beat up his homie, or where he went into a rival's territory, got shot at, and shot back and killed someone, or where a guy accused of stealing someone else's drugs gets attacked by 3 guys with guns and kills one of them. I got manslaughters on all of them, but it was like pulling teeth, and I had to go to trial first on 2 of them. But this takes things to a whole new level, if you can go and execute people and have a jury of your peers call it manslaughter, I need to do a better job of jury selection, I guess. My clients are right when they complain that they're not getting a jury of their peers when there are no fellow gangbangers on their panel.